Whether the NSSO was justified in refusing access to additional records relating to the method of calculation of pensionable allowances, other than those already released, under section 15(1)(a) of the Act on the ground that no further relevant records exist or can be found

10 December 2020

Background

The applicant is a retired civil servant in receipt of a pension. The NSSO, on behalf of Government Departments, processes and calculates pensions when a civil servant retires. It appears the applicant is unhappy with how his pension entitlements have been calculated and has been in correspondence with the NSSO about the matter. In a request dated 9 February 2019, he sought access to the following five categories of records:

1. Details of the method of calculation of pensionable allowances in the case of Revenue staff having regard to the requirements of DF Circular 10/2008.
2. Details of the method of calculation of pensionable allowances in the case of Prison Officers having regard to the requirements of DF Circular 10/2008 and the instructions given to staff in regard to such calculations.
3. Details of the method of calculation of pensionable allowances in the case of Department of Justice staff having regard to the requirements of DF Circular 10/2008 and the instructions given to staff in regard to such calculations.
4. All details relating to his appeal for a refund of Spouses’ and Children’s Scheme contributions in excess of 40 years, the actual excess amount paid by him and the reason why it has not been refunded.
5. All details concerning an alleged overpayment to him referenced in DPER documents released under FOI.

As the NSSO did not make a decision within the statutory four weeks, the applicant sought an internal review of the deemed refusal of his request on 25 March 2019. The NSSO issued a decision on 15 October 2019 in which it indicated that it had decided to grant the request and it provided copies of 21 records to the applicant, 20 of which it described as emails between the NSSO and the Department of Public Expenditure and Reform (DPER) relating to categories four and five. It provided a single record in response to categories one to three, which contained an explanation of how it calculates pensionable allowances for all government departments.

There was a significant delay from the time the applicant made his original request and before a decision was issued by the NSSO. The NSSO explained that during early 2019 it moved Offices and some post was not immediately forwarded to its new Office. It said that upon receipt of the application, a staff member contacted the applicant. It said that after consultation with the applicant it understood that this matter was to be dealt with as a review of the applicant’s pension rather than a FOI request. The NSSO accepted that this was not the applicant’s intention but the misunderstanding resulted in a further delay.

On 22 March 2020, the applicant sought a review by this Office of the NSSO’s decision in respect of categories one, two, three and five of his request.  In his application for review, he set out his understanding of the manner in which Circular 10/2008 provides the calculation of the amount of pensionable allowance to be used in the calculation of pensions. He argued that the steps set out in Circular 10/2008 are not being carried out by the NSSO and while he acknowledged that this Office has no role in examining such issues, he said he was seeking access to the relevant documentation in order to establish why the calculations are not being carried out in accordance with the Circular.

During the course of the review, the NSSO informed this Office that it carried out a more extensive search for relevant records following receipt of a copy of the application for review he submitted to this Office and that it had identified further relevant records. It also said it had decided to provide additional information to assist with outstanding queries.

On 25 May 2020, the NSSO wrote to the applicant and provided him with additional relevant information and records. It also explained that the applicant had raised a valid question in relation to a policy matter pertaining to pension calculation. It said this is something it intended to bring to the attention of the relevant policy department, DPER, for further consideration. It said that as a result of these queries, the NSSO is also currently reviewing all its processes and methodology for calculating pensionable allowances, with regards to Department of Finance Circular 10/2008 and that on completion of this review, the NSSO will apply any revisions to the process considered necessary and review the applicant’s specific case.

In a letter of 9 June 2020 to this office, the applicant argued that the NSSO had not supplied him with all relevant records. In essence, he argued that the documentation released does not provide the requisite information concerning the method of calculation of pensionable allowances. Accordingly, the Investigating Officer sought further submissions from the NSSO in relation to the searches undertaken to locate all relevant records. On 6 September 2002, the applicant informed this Office that he was withdrawing his application for review relating to category five.

Upon receipt of the submissions of the NSSO, the Investigating Officer provided the applicant with the details of the searches carried out by the NSSO and of its explanation as to why no further relevant records could be found or exist. She informed the applicant of her view that NSSO was justified in refusing access to any further relevant records under section 15(1)(a) of the FOI Act and invited him to make a submission on the matter. In his subsequent submission, the applicant indicated that he did not accept that no further records could not be found or existed. Therefore, I consider it appropriate to conclude this review by way of a formal, binding decision. In carrying out my review, I have had regard to the correspondence between the applicant and NSSO as outlined above and to correspondence between this Office and both the applicant and the NSSO on the matter.

Scope of Review

This review is concerned solely with whether NSSO was justified, under section 15(1)(a) of the FOI Act, in refusing to release any additional records relating to categories one to three of the applicant’s request apart from those already released on the grounds that no further relevant records exist or can be found.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In such cases, the role of this Office is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and I must also assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

As outlined above, the NSSO provided submissions to this Office in relation to the searches undertaken for relevant records and this Office provided the applicant with those details. As such, I do not propose to repeat them in full in here. In short, the NSSO submitted that the records it released to the applicant on 25 May 2020 provide an explanation of the process of calculating pensionable allowances regarding categories one to three of the applicant’s request.

The primary thrust of the applicant’s argument is that while the NSSO has provided details of the steps involved in calculating pensionable allowances, it has provided no information concerning the method of calculation of the allowance. He explained that his request arose as a result of the alleged incorrect calculation of his pensionable allowance.

In his view, Circular 10/2008 provides that the procedure for calculating pensionable allowance can be summarised as follows:

1. Calculate the total allowance paid for a total of three years for each of the eight three-year blocks in the 10 years preceding retirement
2. Calculate the annual average for each three-year block
3. Uprate each figure at 2 above by reference to the date of change in pay between the end of each three-year period and date of retirement. The highest figure of the eight is the pensionable amount to be used in calculating the pension

He said that when he received an explanation as to how his allowance was calculated, he noted that it was calculated incorrectly. He suggested that step 3 is being overlooked, hence his request to obtain the records that show how the pensionable allowance is being calculated.

The NSSO explained that the process of calculation involves inputting data provided by a retiring employee’s employer into its system. The NSSO runs a “best 3 in 10” report which entails finding the best three consecutive years in the previous ten years prior to retirement. It then compares the eight three year periods and use the highest average, which results in the individual getting the highest three-year period. This amount is then uprated and the adjustment made. The NSSO explained that the computer system does not show the formulations and algorithms that are being applied to arrive at the figures presented in the reports. It said that these calculations are carried out at the backend of the systems and they are not visible. 

In further correspondence with this Office, the NSSO confirmed that when calculating pensionable allowance, the only guidance documents it uses are the manual and the relevant Circular, both of which have been released to the applicant. It is, in essence, NSSO’s position that no further relevant records can be found or do not exist apart from those already released. It is important to note that the FOI Act is concerned with access to records held by public bodies. If the record sought is not held by the body then that is the end of the matter, regardless of whether or not the requester believes the record ought to exist.

Having considered the details of the searches undertaken and its explanation as to why no further records exist or can be found, I am satisfied that NSSO has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the applicant’s request. I find, therefore, that NSSO was justified in refusing access to any additional records on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2), I hereby affirm NSSO’s refusal of the applicant’s request for further records relating to the method of calculation of pensionable allowances under section 15(1)(a) of the FOI Act on the ground that no further relevant records exist or can be found.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator